PC 1203.067 Mandatory Probation Conditions for CA Felony Sex Crimes PC 261, 264.1, 286, 287, 288, 288.5, & 289.
- sexcrimesdefensela
- Oct 8
- 6 min read
Updated: Oct 8
A felony probation sentence (as opposed to a prison sentence) is available after a conviction for some California felony sex crimes, including crimes of lewd act on a child under 14 (child molestation), oral copulation (oral sex), sodomy, sexual penetration with object, rape in concert (gang rape), and continuous sexual abuse of a child.
The availability of a probation sentence after a felony sex crime conviction depends on the following:
the exact felony sex crime for which the defendant is convicted,
the presence of any alleged facts in the case that preclude a probation sentence, and
whether or not the defendant is amenable to a probation sentence, and he or she agrees to the conditions of probation.
Probation Ineligibility Cases: To start, some felony sex crimes are ineligible for a probation sentence regardless of the facts that support the criminal allegation and regardless of whether the defendant is willing to agree to any conditions of a probation sentence.
These probation ineligible sex crimes include the most severe felony sex crimes, such as sexual penetration of a child under ten years of age (PC 288.7), aggravated sexual assault of a child (PC 269), rape by force or fear (PC 261(a)(2)), pimping (PC 266(h)), oral copulation by force (PC 287(c)(2)), sodomy by force (PC 286(d)), and a few other very severe sex offenses.
Factors that Preclude Felony Probation Sentence: When a felony sex crime is otherwise eligible for probation, certain facts that are alleged in the underlying case might make that felony sex crime ineligible for probation.
Example: David is charged with PC 288(a) [Lewd Act Upon a Child Under 14]. David is also charged with the enhancement penalty of PC 1203.066(a)(8) “Substantial Sexual Conduct" [A factor listed in PC 1203.066 that makes criminal charges ineligible for a probation sentence]
Result: David would have been eligible for a felony probation sentence (as opposed to a prison sentence) on the PC 288(a) charge, but the issue of a probation sentence is moot because the PC 1203.066 penalty enhancement precludes the grant of a felony probation sentence in any PC 288(a) case.
The factors of case that make an otherwise eligible-for-probation felony sex crime a non-eligible-for-probation felony sex crime are listed in CA penal code 1203.066.
The PC 1203.066 factors include items such as whether the defendant used force to commit a sex crime (PC 1203.066(a)(1)), whether the defendant used a weapon to commit the sex crime (PC 1203.066(a)(4), whether the defendant committed “substantial sexual conduct” during a sex crime) (PC 1203.066(a)(8)), and more.
Probation Conditions for Eligible Felony Sex Crimes: As discussed, some felony sex crimes are automatically ineligible for a felony probation sentence based on the egregiousness of the allegation itself (See Probation Ineligibility Cases above).
Also, some felony sex crimes are eligible for a probation sentence, but some underlying factor in the case precludes felony probation sentencing (See Factors That Preclude Felony Probation Sentence above).
The remaining felony sex crimes are eligible for probation sentencing (as opposed to a state prison sentencing), so long as the court determines it is in the best interest for the defendant to be granted probation and he or she agrees to certain felony probation terms (See Below).
Probation Eligible Sex Crimes: As stated, if the felony sex crime is not automatically rendered ineligible for a probation sentence due to the egregious nature of the allegation, or rendered ineligible for a probation sentence because of an underlying factor in the case that precludes a probation sentence, then the felony sex crime is eligible for a probation sentence (as opposed to a prison sentence).
These probation eligible felony sex crimes include:
PC 261.5 Statutory Rape
PC 286 Sodomy Crimes [Most]
PC 287 Oral Copulation Crimes [Most]
PC 288 Lewd Act on Child Under 14
PC 288.5 Cont. Sex Abuse of Child
PC 289 Sexual Pen. Crimes [Most]
PC 285 Incest
PC 311.11 Poss. of Child Porn
PC 314 Indecent Exposure
PC 243.4 Sexual Battery
Note: All misdemeanor sex crimes are eligible for a misdemeanor probation sentence regardless of the exact felony for which the defendant is charged and regardless of the presence of any underlying factor in the case.
PC 1203.097 Condition for Probation Sentence
Some felony sex crimes are eligible for probation, but only if the defendant agrees to certain conditions of felony probation. Consider the following:
Per PC 1203.097, ‘Notwithstanding any other law, before a probation sentence may be granted to any person convicted of a felony listed in PC 261 (rape), PC 264.1 (rape in concert), PC 286 (sodomy), PC 287 (oral copulation), PC 288 (lewd and lascivious act on a child), PC 288.5 (cont. sexual abuse of a child), or PC 289 (sexual penetration by foreign object),…, the court shall do all of the following:
‘Order the defendant evaluated for his or her suitability to a felony probation sentence…, or similar evaluation by the county probation department.’ (PC 1203.097(a)(1))
Conduct a hearing at the time of sentencing to determine if probation of the defendant would pose a threat to the victim…. (PC 1203.097(a)(2) Abbrev.).
Order any psychiatrist or psychologist appointed pursuant to Section 288.1 to include consideration of the threat to the victim and the defendant’s potential for positive response to treatment in making the report to the court. This section does not require the court to order an examination of the victim (PC 1203.097(a)(3)).
The terms of felony probation for an offense that requires sex offender registration (PC 290 registration) ‘…. shall successfully complete a sex offender management program, ... The length of the period in the program shall be not less than one year… (Abbrev.)
Waive of any privilege against self-incrimination and participation in polygraph examinations, which shall be part of the sex offender management program,
Waive of any psychotherapist-patient privilege to enable communication between the sex offender management professional and supervising probation officer.
Example: David is charged with felony unlawful sexual intercourse (PC 261.5(c)). Unlawful sexual intercourse is not a crime covered in PC 1203.097, and the crime is not an offense for which sex offender registration is required. Therefore, David may receive a felony probation sentence after his PC 261.5(c) conviction without the additional probation condition requirements of PC 1203.097 (i.e., sex therapy classes, psychological evaluation, polygraph examination, etc.).
Example II: If David was charged with PC 288.5 (Continuous Sexual Abuse of a Child), then David may only be granted a felony probation sentence if he agrees to the terms listed in PC 1203.097 (i.e., submits to polygraph examinations, attends sex therapy classes for at least a year, submit to psychological testing, etc.).
Unusual or Special Circumstances: Some felony sex crimes are eligible for probation sentencing (as opposed to state prison sentencing), but only if the court finds that unusual or special circumstances apply to the case, such that probation sentencing serves the best interest of justice.
Example: The crime of continuous sexual abuse of a child (PC 288.5(a)) is listed as a probation eligible crime under PC 1203.067, but the crime is also a crime which requires special circumstances that justify a probation sentence. therefore, a probation sentencing is available in a PC 288.5 case, but only if 1) the court determines that special circumstances apply to the case that justify a probation sentence, and 2) the defendant agrees to the probation conditions listed in PC 1203.067.
Felony Probation Length: The length of probation after a felony conviction of a California sex offense is discussed at Probation & Parole for CA Sex Crimes.
For more information on felony sex crimes probation eligibility after conviction (as opposed to a prison sentence), contact our highly experienced and successful sex crimes criminal defense lawyers today.
We handle all felony and misdemeanor sex crimes defense in San Bernardino, Orange, Riverside, and Los Angeles Counties, including Lewd Acts (PC 288), Poss. of Child Porn (PC 311), Indecent Exposure (PC 314), Sexual Battery (PC 243.4), Prostitution (PC 647(b)), Pimping (PC 266h), Revenge Porn (PC 647(J)(4)), Oral Copulation (PC 287), Sexual Assault (PC 220), Rape Crimes (PC 261 & 264.1), Pandering (PC 266i), Attempt Rape (PC 664/261), & More.
Our sex crimes criminal defense lawyers offer free and discreet consultations. Call now!
909-913-3138
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